A TEST OF CIVILIZATION

BOSTON -- There is a class of Americans, two million of them, who have
little if any way to vindicate their constitutional rights. They can be
abused, tortured, raped without effective recourse to law.

They are the inmates of America's prisons. As such, they get little
sympathy from the public. But I hope and believe that few among us would
want even those who have been properly convicted and imprisoned to be
deprived of their legal protection from physical harm and brutality.

Think about this recent case: A prisoner at the federal penitentiary in
Atlanta was held for five days in what is called a "four-point restraint."
He was chained by his wrists and ankles, on his back, in a spread-eagle
position. He was forced to urinate and defecate on himself. For five days.

The nauseating facts of that case are not in doubt -- because the prisoner
found a lawyer who sued the Federal Bureau of Prisons over the lawless
treatment. The bureau settled the lawsuit by paying the prisoner $99,000.

But it was unusual, indeed extraordinary, for that prisoner to get legal
help. For Congress in the 1990's erected a series of barriers that prevent
prisoners from vindicating their legal rights in most cases even if they
have been brutally mistreated.

One statute bars poverty lawyers who get federal funds from representing
prisoners. Another sets the fees so low for private lawyers who sue
successfully that few can afford to take on prison cases.

Harshest of all is the Prison Litigation Reform Act of 1996, passed by a
Republican Congress and signed by President Clinton. Among other things it
requires prisoners to exhaust a prison's "administrative remedies" for
mistreatment before they can sue. They may have as little as five days to
do that; they may not know how, and they may face retaliation if they
complain. If they fail that barrier, they have waived their rights.

The use of four-point restraints has not been limited to that one Atlanta
federal prisoner lucky enough to get a lawyer. In 1999 another inmate in
that prison died while under such restraint. In the years 1996-97 about 100
federal inmates were held in those restraints, one for two months.

The director of the Southern Center for Human Rights, Stephen Bright, wrote
to leaders of the Senate Judiciary Committee last week urging an
investigation of the use of four-point restraints -- and of obstacles to
effective legal remedies for abuse in prisons. He and a colleague, Marion
D. Chartoff, said they had found numerous cases in which prisoners were
thus restrained as punishment for petty misbehavior.

And four-point restraints are not the only brutality found in American
prisons. Another is male rape, the subject of a chilling report this week
by Human Rights Watch. The report found that inmate-on-inmate sexual abuse
is frequent in prisons, and that the authorities do little to protect
prisoners -- even those who have expressed their fear of attack.

Brutal prison conditions should concern us the more because this country
now imprisons a higher percentage of its population than any other in the
world. Long mandatory minimum sentences for nonviolent drug offenses are a
major reason for the burgeoning prison population.

The number of federal prisoners passed 150,000 last week, three times the
number when President Reagan left office in 1989. The Bureau of Prisons
predicts it will have nearly 200,000 by 2006. Of present inmates, 58
percent are there for drug crimes.

The time has come for Congress and state legislatures to reconsider the
drug war -- and mandatory minimum sentences. They are often grossly out of
proportion to the offense, and they put heavy strains on our resources. The
Federal Bureau of Prisons now spends almost as much annually as the F.B.I.
and the Drug Enforcement Administration combined.

In any event, we should be doing much more to enforce legal rules against
brutality in prisons. That is for the sake not only of the prisoners but of
us, the law-abiding. Winston Churchill explained why in 1910, when as home
secretary he said in Parliament:

"The mood and temper of the public in regard to the treatment of crime and
criminals is one of the most unfailing tests of the civilization of any
country. A calm, dispassionate recognition of the rights of the accused,
and even of the convicted criminal . . . measure[s] the stored-up strength
of a nation and [is] sign and proof of the living virtue in it."